OUTLINE

The Bill adds
further parcels of land to Schedule 1 to the Aboriginal Land Rights (Northern Territory) Act 1976 . This will
enable the land to be granted to relevant Aboriginal Land
Trusts.

Indigenous Land
Corporation

The Bill amends the
Aboriginal and Torres Strait Islander Act 2005 to
include a power for the Minister to make guidelines that the
Indigenous Land Corporation must have regard to in deciding whether
to perform its functions in support of a native title settlement
and, if it decides to perform its functions in support of a native
title settlement, in performing its functions in support of that
settlement.

Torres Strait Regional
Authority

The Bill amends
the Aboriginal and Torres Strait
Islander Act 2005 to remove the connection between the election of members to
the Torres Strait Regional Authority and the Queensland Local Government elections,
and to allow for a wider range of options for the composition of
the Torres Strait Regional Authority.

Financial impact
statement

The Bill has no financial impact.

INDIGENOUS AFFAIRS
LEGISLATION AMENDMENT BILL 2011

NOTES ON
CLAUSES

Clause 1 sets
out how the Act is to be cited, that is, as the Indigenous
Affairs Legislation Amendment Act 2011.

Clause 2 provides a table
that sets out the commencement dates of the various sections in,
and Schedules to, the Act.

Clause 3 provides that each
Act that is specified in a Schedule is amended or repealed as set
out in that Schedule.

This explanatory memorandum uses
the following abbreviation:

‘ATSI Act’ means the
Aboriginal and Torres Strait Islander
Act 2005.

Schedule 1
- Scheduling of
land

Summary

This Schedule adds
further parcels of land to Schedule 1 to the Aboriginal Land
Rights (Northern Territory) Act 1976 (the Land Rights
Act). This will enable the land to be granted to relevant
Aboriginal Land Trusts.

Background

This Schedule adds further
parcels of Northern Territory land near Borroloola, and also land
comprising the Port Patterson Islands, to Schedule 1 to the
Land Rights Act. This will allow the land in question to be
granted to relevant Aboriginal Land Trusts under sections 10 and 12
of the Land Rights Act.

Agreement has been reached
between the Commonwealth, the Northern Territory Government
and the Northern Land Council that these parcels of land should be
granted to relevant Aboriginal Land Trusts as Aboriginal land under
the Land Rights Act.

The parcels of land near
Borroloola are associated with the Borroloola Land Claim, which was
the first land claim made under the Land Rights Act.
The parcels of land include Batten Point, North Island and
some small islands off the coast of Vanderlin Island. North
Island has been held as Barranyi National Park and previously
did not qualify to be granted as part of the land claim. The
small islands, called Rarranggilawunyara, Niwawunala, Wanadjurara
and Alolo, were part of the land claim, but were inadvertently
omitted from the original recommendations in relation to this
claim. Two related grants of land have previously been made
to the claimants, and, once these particular parcels of land are
granted, this land claim will be resolved.

The Port Patterson Islands also
relate to a long-running land claim, the Kenbi Land Claim over the
Cox Peninsula near Darwin. After a long and complex process,
this land claim is also approaching resolution. The addition
of the Port Patterson Islands to Schedule 1 to the Land Rights Act
will enable this land to be included in a grant associated with the
Kenbi Land Claim in the near future.

This measure was originally
introduced in the Families, Housing, Community Services and
Indigenous Affairs and Other Legislation Amendment (Budget and
Other Measures) Bill 2010, but was withdrawn during passage to
allow one of the land area measurements, drawn from the survey plan
for the land in question, to be clarified. That clarification
is now reflected in this Schedule.

The amendments made by this
Schedule commence on the day after Royal Assent.

Explanation of the
changes

Item 1 amends Part 4 of Schedule 1 to
the Land Rights Act by inserting a reference to various portions of
land near Borroloola in the Northern Territory as land to be
granted as Aboriginal land.

Item 2 also amends Part 4 of Schedule 1
to the Land Rights Act by inserting a reference to a portion of
land in the Northern Territory known as the Port Patterson Islands
as land to be granted as Aboriginal land.

Schedule 2
- Indigenous Land
Corporation

Summary

This
Schedule amends the ATSI Act to include a
power for the Minister to make guidelines that the Indigenous Land
Corporation must have regard to in deciding whether to perform its
functions in support of a native title settlement and, if it
decides to perform its functions in support of a native title
settlement, in performing its functions in support of that
settlement.

Background

The purpose of the
Indigenous Land Corporation is to assist Aboriginal people and
Torres Strait Islanders to acquire and manage Indigenous-held land
so as to provide economic, environmental, social and cultural
benefits.

The Indigenous Land
Corporation’s functions are set out in sections 191C, 191D
and 191E of the ATSI Act. Its main functions are land
acquisition and land management. These functions can be
exercised in support of native title settlements, whether or not
the settlement includes a determination of native title.

The Government promotes flexible
native title settlements that can be sustained over the long term,
instead of litigation, wherever possible. Settlements may
provide for a range of practical benefits, including employment,
training and business opportunities.

In introducing these amendments,
the Government recognises that the Indigenous Land Corporation can
assist with the resolution of native title settlements,
particularly where connection to the land in question is at issue
and native title may not be established.

The amendments provide a power
for the Minister to make guidelines that the Indigenous Land
Corporation must have regard to before deciding to perform its
functions in support of a native title settlement, as well as when
it decides to perform its functions in support of a native title
settlement . In these instances, the
Indigenous Land Corporation will be required to have regard to any
guidelines made in the exercise of the Minister’s
power.

This measure was originally
introduced in the Families, Housing, Community Services and
Indigenous Affairs and Other Legislation Amendment (Budget and
Other Measures) Bill 2010, but was withdrawn during passage to
allow time for the Senate Standing Committee on Legal and
Constitutional Affairs to inquire into the measure. The
Committee reported on 9 February 2011. This Schedule reflects
the recommendation made by the Committee to clarify the measure by
rephrasing subsection 191F(2A) and adding a definition of the term
‘native title settlements’.

The amendments made by this
Schedule commence on the day after Royal Assent.

Explanation of
the changes

Item 1 inserts new subsection 191F(2A)
into the ATSI Act. New subsection 191F(2A) requires the
Indigenous Land Corporation to have regard to guidelines made under
new section 191HA in deciding whether to perform its functions
in support of a native title settlement and, if it decides to
perform its functions in support of a native title settlement, in
performing its functions in support of that settlement.

Item 1 also inserts a note to clarify
that the Native Title Act 1993 deals with making and
resolving native title claims.

The Indigenous Land Corporation
may perform its functions for any reason covered in its enabling
legislation. The Indigenous Land Corporation
must have regard to the guidelines before deciding to perform its
functions in support of a native title settlement, as well as when
it decides to perform its functions in support of a native title
settlement. It will not be required to have regard to the
guidelines when performing its functions in other
contexts.

Item 2 inserts new section 191HA, which
provides that the Minister may make guidelines for the purposes of
new subsection 191F(2A). Any guidelines made under this
provision will be a legislative instrument.

Item 3
amends the heading to section 191I
by omitting the word ‘Guidelines’ and substituting
‘Indigenous Land Corporation guidelines’, to describe
more accurately the content of the section .

Subsection 191I(1) applies if
the Indigenous Land Corporation makes its own guidelines about the
performance of a function referred to in paragraph 191D(1)(a),
(c) or (d) or paragraph 191E(1)(d), (e) or (f) of the
ATSI Act.

New subsection 191I(1A), inserted
by item 3 , makes it clear that any guidelines made by the
Indigenous Land Corporation will have no effect, to the extent of
any inconsistency, if they are inconsistent with any guidelines
made by the Minister under new section 191HA.

Item 4 makes an amendment to subsection
191I(2) required as a consequence of item 3 .

Schedule 3
- Torres Strait Regional
Authority

Summary

This Schedule amends
the ATSI Act to remove the
connection between the election of
members to the Torres Strait Regional Authority (the TSRA) and the Queensland Local Government
elections, and to allow for a wider range of options for the
composition of the TSRA.

Background

Section 142Y of
the ATSI Act currently provides that elections for the TSRA are to
be held every three years. The timing of the election is
linked to Local Government elections under the ‘Queensland
Act’ (a defined term in the ATSI Act). Under previous
Queensland law, Local Government elections were held every
three years. However, under the present Queensland
legislation, the Local Government Act 2009 (Qld)
(the Queensland Local Government Act),
Local Government elections are held every four
years. As a result, the timing set out in section 142Y is now
inconsistent with the timing set out in the Queensland Local
Government Act. This Schedule amends section 142Y to
remove the connection between the two sets of elections.

This Schedule also
amends section 142S of the ATSI Act. Under present section
142S, the only power that the Minister has to determine the
constitution of the TSRA is to determine that it would best
represent the Torres Strait area if it included people elected
under the Queensland Local Government Act. This is another
way in which the TSRA election process is connected to Queensland
Local Government processes.

Removing the
connection between the ATSI Act and the Queensland Local Government
Act will reduce the potential for conflicts of interest between the
roles of people elected to both the TSRA and the Queensland Local
Government councils.

Subsection 142S(1)
of the ATSI Act allows the Minister to appoint members to the TSRA
to represent ‘particular communities’. The TSRA
has commissioned a governance review of its structure and the
method of appointment of its members. Without
pre-empting outcome of the review, which may not be known
before the amendments in this Schedule commence, it is expected
that some more flexible outcomes for the composition of the TSRA
will be considered. To allow this to happen, wording in the
ATSI Act referring to ‘particular communities’ is
amended by this Schedule.

The amendments made by this
Schedule commence on a single day to be fixed by
Proclamation. However, as a default, if the provisions do not
commence within the period of 12 months beginning on the day this
Bill receives Royal Assent, they commence on the day after the end
of that period. A longer than usual default period has been
included to ensure that the amendments contained in this Schedule
can be proclaimed to commence at a time that will not interfere
with the conduct of the next TSRA election process. Providing
for commencement by Proclamation, or after a period of 12 months,
will allow the amendments to commence either before the next
election period or after that period (rather than part-way
through the period).

Explanation of the
changes

Item 1 repeals the definition of
‘Queensland Act ’ in subsection 4(1).
Because the connection between the ATSI Act and the Queensland
Local Government Act is removed by item 7 of this Schedule,
this definition is no longer required.

Items 2, 4 and 5 omit
the word ‘notice’ and substitute ‘an
instrument’ in subsections 142R(1) and 142TA(3) and
paragraph 142TA(5)(b) respectively. This is a consequential
change required because of the changes to section 142S made by
item 3 of this Schedule. Similarly, item 8
omits the words ‘a notice under paragraph 142S(2)(a) or
(b)’ and substitutes ‘an instrument under
section 142S’ because of the changes to section
142S.

Item 3 repeals and replaces section
142S. Under new subsection 142S(1), the Minister may make a
legislative instrument providing for and in relation to how the
TSRA is to be constituted (rather than determining this by notice
in the Gazette, as is current practice). Since the
commencement of the Legislative Instruments Act 2003 , a
legislative instrument, rather than a notice in the Gazette, is the
required method for making subordinate legislation which meets the
definition of a ‘legislative instrument’ under that
Act. Consequential to this change, current subsection (5),
which provides that a notice in the Gazette made under section 142S
is a disallowable instrument, is no longer
required.

Under current subsection
142S(1), the Minister may determine that the TSRA would best be
able to represent the Torres Strait Islanders, and Aboriginal
persons, living in the Torres Strait area if it consisted of, or
included, persons elected to represent particular communities in
that area under the Queensland Act. In effect, people elected
under Queensland Local Government elections also become members of
the TSRA. This may have potential for conflicts of interest
for people who hold positions both as councillors under Queensland
Local Government law and on the TSRA.

Because the connection between
the ATSI Act and the Queensland Local Government Act is being
removed, new subsection 142S(1) does not refer to the
‘Queensland Act’. This change reduces the
potential for conflict of interest of members elected to the TSRA,
as they will be directly elected to the TSRA rather than being
appointed as a result of the Queensland Local Government
elections. A person may still be elected to both the
Queensland Local Government and the TSRA, if the person is
successful in both elections. New subsection 142S(1)
allows the Minister greater flexibility in how the TSRA is to be
constituted than is available under current subsection
(1).

A review of the structure of the
TSRA and the method of appointment is about to take place, and it
is intended that the options available for the composition of the
TSRA following that review be as wide as possible.

Accordingly, new
paragraph 142S(2)(a) provides that the Minister may make an
instrument for ‘some or all’ of the TSRA members
‘to be elected under this Act to be representatives of a
specified kind’. This wording is intentionally flexible
and broad, and could encompass a wide range of outcomes, depending
on the outcome of the review.

New subsections (3), (4), (5)
and (6) are similar in effect to the present subsections (3), (3A),
(3B) and (4). However, some changes of wording have been made
to simplify and clarify section 142S. For example,
new subsection (3) does not refer to an instrument making
other provisions in relation to the constitution of the TSRA, but
only refers to provisions in relation to the operation of
the TSRA. This is because matters relating to how the TSRA is
constituted are now completely covered by subsection
(1).

Item 6 omits from subsection 142Y(1)
‘Subject to this section, TSRA elections must be held every 3
years’ and substitutes ‘TSRA elections must be held
every 4 years’. As a practical matter, to maximise
efficiency and save money, TSRA elections will be held every four
years, rather than every three years. Subsection 142Y(1) has
been amended to reflect this.

Item 7 repeals subsection
142Y(3). Presently, subsection 142Y(3) provides that the
polling day or days for each TSRA election must be not later than
the anniversary in the third calendar year, and each later third
calendar year, of the day in 1994 on which the triennial election
for an Island Council is held under the Queensland
Act.

By repealing subsection 142Y(3),
the connection requiring the TSRA elections to be held at the same
time as the Queensland Local Government elections is removed.
The repeal of this subsection, in conjunction with the changes to
subsection 142Y(1), provide that the date for TSRA elections is
determined solely by the provisions of the ATSI Act.